THEY CAN'T SEND 'GURU OF GANJA' TO JAIL, BUT FEDS WILL RETRY CASE

Federal prosecutors brushed off a judge's suggestion that they not
retry a prominent marijuana advocate on cultivation charges and said
Friday they would press ahead, even though he cannot be sent to
prison if he is convicted.

Assistant U.S. Attorney George Bevan made the announcement at a
hearing in San Francisco before U.S. District Judge Charles Breyer,
who presided over the first trial of 62-year-old Ed Rosenthal of
Oakland. When Bevan said last month that the government intended to
retry the self-described "guru of ganja," Breyer urged him to
reconsider, suggesting that federal resources might be used more
productively in prosecutions that result in imprisonment.

Bevan said Friday that prosecutors had reached their decision after a
"thorough and careful review" and that the final word had come from
Scott Schools, the interim U.S. attorney in San Francisco. When
Breyer asked if Justice Department officials in Washington had been
consulted, Bevan said he didn't know.

The retrial, scheduled to begin May 14, will be limited to the
cultivation charges of which Rosenthal was convicted in 2003,
verdicts that were overturned on appeal last year. Prosecutors have
said they would not seek additional imprisonment for Rosenthal,
beyond the one day in jail he has already served, if he were convicted again.

Rosenthal was arrested for growing marijuana that he said was
intended for medical patients. After he won his appeal on grounds of
juror misconduct, prosecutors secured a new federal grand jury
indictment in October that included additional charges of tax evasion
and moneylaundering related to his marijuana cultivation.

The new charges could have resulted in a prison sentence of 20 years,
but Breyer dismissed them last month, saying they had been added
vindictively in retaliation for Rosenthal's successful appeal and his
public statements disputing the fairness of his trial.

Bevan said Friday that his office would not appeal Breyer's ruling.

After the hearing, defense lawyers criticized the retrial decision.
But Rosenthal's response was: Bring it on.

"This isn't a criminal case. This is a political case," said
Rosenthal, wearing a shiny green robe embroidered with images of
marijuana leaves. "When I win this case, it's saying to the
government, 'You have to stop harassing the medical (marijuana)
dispensaries.' "

Defense lawyer Shari Greenberger said she would ask Breyer to order
the government to reimburse Rosenthal for the time his lawyers spent
getting the new charges dismissed. Virginia Resner, president of a
group called Green Aid, which is raising money for Rosenthal's
defense, said preparation for the new trial has already cost $180,000.

Rosenthal is an authority on marijuana cultivation. His latest book
was "Why Marijuana Should Be Legal."

His first trial was the first and most prominent of several federal
prosecutions of growers who were providing cannabis under a 1996
state initiative that allowed patients to use the drug with a
doctor's approval.

Breyer barred evidence about medical marijuana during the trial,
saying it was irrelevant to a prosecution under federal drug laws.
After a jury convicted Rosenthal of three counts, however, the judge
imposed a token one-day sentence rather than the five years
prescribed by federal guidelines. Breyer said Rosenthal had believed
he was acting legally because the city of Oakland had designated him
as an official in its medical marijuana distribution program.

A federal appeals court overturned the convictions last year, finding
misconduct by a juror who consulted a lawyer during deliberations.
The court also indicated that it would have rejected prosecutors'
appeal of the one-day sentence even if it had upheld the convictions.